Dismissed

Dr Ashish Garg S/O Ramesh Chand Garg v. State of Rajasthan

Rajasthan HC30 May 2023CW/15154/2019

Case brief

AI extract

What is this about?

The petitioner challenged the vires of Rule 5(iv) of the RVRES Rules 2010, which counted Career Advancement Scheme benefits only from service on a sanctioned post. The court dismissed the petition, holding the Rule intra vires and not discriminatory, and found the petitioner bound by the undertaking and guilty of delay; the earlier Division Bench judgment was binding.

What the court decided

AI extract

Dr Ashish Garg S/O Ramesh Chand Garg Vs State of… — Service and Employment | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Writ Petition No. 15154/2019

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Dr.Ashish Garg S/o Ramesh Chand Garg, aged about 52 Years, R/o Plot No. 9, in front of Shivani DJ., Modi Road, Fauj Ka Mohalla, Jhunjhunu- 333001.

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----Petitioner

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Versus

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State of Rajasthan through Secretary, Department of Higher Education, Secretariat Building, Near Statue Circle, Jaipur.

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Commissioner College Education, Block-IV, Dr.S.Radhakrishnan Shiksha Sankul, Jawahar Lal Nehru Marg, Jaipur- 302015.

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University Grants Commission, Bhadurshah Zafar Marg, New Delhi- 110002 through its Chairman.

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Managing Committee, Seth Motilal P.G. College, Near Rani Sati Mandir, Jhunjhunu, Rajasthan through Secretary Sh.G.L.Sharma.

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----Respondents

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For Petitioner(s) : Mr.Vivek Dangi, Adv. For Respondent(s) : Mr.Prakhar Gupta, Advocate & Ms.Charvi Patni, Advocate on behalf of Dr.V.B.Sharma, AAG. Mr.Neeraj Batra, Advocate for No.3UGC.

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HON'BLE MR. JUSTICE ASHOK KUMAR GAUR HON'BLE MR. JUSTICE ASHUTOSH KUMAR

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JUDGMENT

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REPORTABLE

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Judgment reserved on : 16^th February, 2023 Date of Judgment : 30^th May, 2023 By the Court:

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The instant writ petition has been filed by the petitioner challenging the vires of the Rules 5(iv) of the Rajasthan

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Voluntary Rural Education Service Rules, 2010 (hereinafter shall be referred to as “ the RVRES Rules of 2010 ”).

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The consequential prayers of the petitioner, as made in the writ petition, are as follows:-

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(i) to quash and set aside the order dated 21.02.2011 regarding revision of salary of the petitioner granting senior scale to him from 01.04.2002 and selection scale from 01.04.2007;

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(ii) to declare the petitioner entitled to the benefit of senior and selection scale from 19.01.1998 and 13.01.2003 respectively by taking into account the period of service rendered by him on the unaided post in the Non-Government Aided Educational Institution;

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(iii) to direct the respondent Nos.3 and 4 to make payment of arrears of salary to the petitioner by extending the benefit of 6^th Pay Commission recommendations while considering the services rendered by the petitioner on unaided post towards senior and selection scales.

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The facts, in nutshell, of the present petition are that the petitioner was appointed initially on 19.01.1993 on the post of Lecturer in Chemistry subject in Seth Motilal PG College, Jhunjhunu which is a Non-Government Aided Educational

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Institution. The services of the petitioner were confirmed w.e.f. 19.01.1995.

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The institution, in which the petitioner was working, was receiving grant-in-aid from the State Government under the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter shall be referred to as “ the Act of 1989 ”) and the Rules framed thereunder i.e. the Rajasthan NonGovernment Educational Institutions (Recognition, Grant-InAid and Service Conditions, Etc.) Rules, 1993 (hereinafter shall be referred to as “ the Rules of 1993 ”) and the post of Lecturer in Chemistry was duly sanctioned w.e.f 01.04.1998.

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The petitioner has pleaded that the University Grants Commission (for short “ the UGC ”) introduced Career Advancement Scheme (for short “ the CAS ”) and as such, the benefit of senior scale was granted to the petitioner w.e.f. 19.01.1998 after selection by a duly constituted Screening Committee including State Government nominee.

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The petitioner has pleaded that after serving for five years as Lecturer in Chemistry in the senior scale from 19.01.1998, he was granted the benefit of selection scale w.e.f. 19.01.2003 again by a duly constituted Screening Committee nominated by the State Government.

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The petitioner has pleaded that the State Government created a new service namely the Rajasthan Voluntary Rural

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Education Service Rules, 2010 and the petitioner had chosen to join the services in the Government Institution and he filled the option form and was absorbed in the Government Service under the RVRES Rules of 2010 on 29.07.2011 and the petitioner was relieved on 30.07.2011 and joined at the allotted College, after being relieved from the earlier NonGovernment Aided Educational Institution-respondent No.4.

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The petitioner has pleaded that vide order dated 21.02.2011 the salary of the petitioner came to be revised, in terms of Rule 5(iv) of the RVRES Rules of 2010, counting the services rendered by him only from 01.04.1998 and ignoring his services prior thereto i.e. from 19.01.1993 to 31.03.1998 and the salary of the petitioner also came to be revised, considering the grant of selection scale from 01.04.2007 instead of 19.01.2003.

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The petitioner, feeling aggrieved by the issuance of order dated 21.02.2011, revising his salary in senior scale and selection scale and so also by the Rule 5(iv) of the RVRES Rules of 2010, assails the vires of Rule 5(iv) of the RVRES Rules of 2010 itself along with the consequential orders in the present petition.

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The respondent-State has filed reply to the writ petition and in the preliminary submission, it has been pleaded that the order dated 21.02.2011 was issued by the respondent-4

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Seth Motilal PG College, Jhunjhunu (Non-Government Aided Educational Institution) after holding a meeting of the Screening Committee for proper placement of eligible Lecturers in senior and selection scales under CAS scheme of UGC and fixations were revised due to new Policy of the Government, ignoring temporary services which were rendered previously and as such the petitioner was fixed in the senior scale on regular basis w.e.f. 01.04.2002 and in selection scale w.e.f. 01.04.2007.

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The respondent-State has further pleaded that the constitutional validity of Rule 5(iv) of the RVRES Rules of 2010 was challenged, with similar facts, in D.B.Civil Writ Petition No.61/2013 titled as Prem Prakash Purohit Vs. State of Rajasthan & Ors. and D.B.Civil Writ Petition No.62/2013 titled as Smt.Santosh Ranka & Ors. Vs. State of Rajasthan & Ors. and the coordinate Bench of this Court dismissed the said petitions upholding the constitutional validity of sub-rule (iv) of Rule 5 of the RVRES Rules of 2010.

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The respondent-State has asserted that since the petitioner was working against the sanctioned post from 01.04.1998, as such, the benefit of CAS was accordingly granted to him. The respondent-State has also taken an objection that the Screening Committee revised the senior

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and selection scales of the petitioner, so granted by the respondent No.4, as per the RVRES Rules of 2010 and the petitioner joined the Government Service much later and as such, for the pre-appointment services i.e. before coming into Government Service, the petitioner is estopped to challenge the vires of the RVRES Rules of 2010.

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Mr.Vivek Dangi, learned counsel appearing for the petitioner has made following submissions:-

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13A. Rule 5(iv) of the RVRES Rules of 2010 is in conflict with the UGC Scheme for grant of CAS benefits, as the UGC Pay Scales Rules nowhere provide that the post on which the employee is working should be sanctioned and aided post under the erstwhile provisions of the Act of 1989 and the Rules of 1993. The petitioner, if fulfills all other eligibility criterion, such as minimum academic qualification and the requisite years of service rendered, he is entitled to the benefits of CAS irrespective of the fact that the post on which he is working is sanctioned or not. The scheme of grant of UGC pay scales is completely different from the grant-in-aid given by the State Government to the aided Institutions, as the grant-in-aid is provided as a certain percentage of total approved expenditure incurred by the Institution in a financial year. However, the benefits of UGC pay scales

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are granted under a special scheme of Assured Career Progression (for short “ the ACP ”).

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13B. Rule 5(iv) of the RVRES Rules of 2010 is discriminatory and therefore, violative of the mandate of Article 14 of the Constitution of India. Rule 5(iv) of the RVRES Rules of 2010 is applicable to those employees of NonGovernment Educational Institutions who have joined Government Service and not to those who continue to work with their respective Non-Government Educational Institutions and, as such, it has created an unreasonable and unjustifiable dichotomy amongst similarly situated persons.

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13C. The promulgation of Rule 5(iv) of the RVRES Rules of 2010, to the extent of prescribing eligibility for grant of UGC pay scales, beyond what has been provided under the UGC Career Advancement Scheme itself, is beyond the legislative competence of the State Government.

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13D. The benefits of CAS, though are not claimed as a matter of right, however, once such benefits are duly sanctioned under the provisions of the prevalent law, the same cannot be arbitrarily denied on retrospective basis.

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13E. The petitioner being an employee of Non-Government Aided Education Institution and having right to receive salary in UGC pay scales, despite the post being non-

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aided is required to be governed as per the explanation appended to Rule 2(c) of the Rules of 1993 and any employee working in the Aided Institution is required to be given benefit of UGC pay scales even if a particular post is not sanctioned and receiving grant-in-aid.

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13F. The objection relating to the right of the petitioner to assail Rule 5(iv) of the RVRES Rules of 2010 and he being estopped to challenge the same on account of validity of the said Rule being upheld earlier by this Court will not be a binding precedent.

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The earlier order passed by the Division Bench in the case of Prem Prakash Purohit (supra) was not assailed on the ground that the said Rule arbitrarily and illegally denies the benefit of revision of pay scales (senior and selection) under the UGC Career Advancement Scheme to employees of Non-Government Aided Educational Institution for the period prior to their post being sanctioned and aided and such argument was neither raised by any party nor was there any consideration, discussion or finding by the High Court and as such the said decision cannot be considered as an authority/ binding precedent on the same issue and as such the said judgment is passed sub silentio and the said Rule is an exception to the Rule of Precedent.

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13G. The objection of the respondent-State that since the petitioner has given an undertaking under Rule 5(xi) of the RVRES Rule of 2010, as such, he is estopped from assailing the validity of the Rule 5(iv) of the RVRES Rules of 2010, is totally misconceived as there can be no estoppel to the fundamental rights guaranteed to the petitioner under Article 14 and 19(1)(g) of the Constitution of India.

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13H. The objection raised by the respondent-State regarding maintainability of the writ petition on the ground of delay and laches in assailing the impugned order dated 21.02.2011 is misconceived as the withdrawal of CAS benefits of senior and selection scales with retrospective effect, continues to prejudicially affect the petitioner during his entire tenure of service and as such, the same constitutes continuous cause of action.

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Learned counsel for the petitioner has placed reliance on the following judgment in support of his submissions:-

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a) Municipal Corporation of Delhi Vs. Gurnam Kaur reported in (1989) 1 SCC 101

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b) State of UP & Anr. Vs. Synthetics & Chemicals Ltd. & Anr. reported in (1991) 4 SCC 139.

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c) A-One Granites Vs. State of UP & Ors. reported in (2001) 3 SCC 537.

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d) Judgment dt.01.02.2018 passed by the coordinate Bench of this Court in D.B.Civil Writ Petition No.7568/2012 [Rajasthan Samayojit Shiksha

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Karmi Welfare Society Vs. State of Rajasthan & Anr.]

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Per contra, learned counsel appearing for the respondent-State Mr.Prakhar Gupta has made following submissions:-

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15A. The vires of Rule 5(iv) of the RVRES Rules of 2010 have already been upheld by the coordinate Bench of this Court in the case of Prem Prakash Purohit (supra) and as such, the same issue may not be allowed to be reopened before this Court and the petitioner is bound by the decision rendered by the coordinate Bench of this Court.

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15B. The judgment passed by the coordinate Bench of this Court at the Principal Seat, Jodhpur in D.B.Civil Writ Petition No.7568/2012 titled as Rajasthan Samayojit Shiksha Karni Welfare Society Vs. State of Rajasthan & Others has already been reviewed and recalled.

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15C. The petitioner is estopped from challenging the vires of Rule 5(iv) of the RVRES Rules of 2010 as the appointment under the RVRES was optional and none of the employee were put under coercion to seek appointment under the Rules of RVRES. The petitioner had given his choice in the option form on his own

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volition and further an undertaking was also submitted on a non-judicial stamp paper, as per Rule 5(xi) of the RVRES Rules of 2010.

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15D. The doctrine of sub silentio to wriggle out of the law laid down in the case of Prem Prakash Purohit (supra), is not applicable in the present facts of the case.

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15E. The judgment passed by the coordinate Bench of this Court in the case of Prem Prakash Purohit (supra) will be a binding precedent and the submission of learned counsel for the petitioner that the argument raised by him in the present petition was not raised, argued and examined in the earlier judgment, is absolutely without substance and the binding precedent of a judgment cannot be lost sight of or loses its significance only on account of the fact that arguments are being raised now in a different way by the counsel or through his innovative method to challenge the present Rule, which has been upheld, and the same cannot be a ground to revisit the order passed by the coordinate Bench of this Court.

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15F. The post of Lecturer in Chemistry was a non-sanctioned post and once the said post got sanctioned in terms of Rule 17 of the Rules of 1993, the State had started

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bearing proportionate burden in terms of the Rules 13 and 14 of the Rules of 1993 and as such, the service conditions of the petitioner, prior to 1998, were not the concern of the State Government and even if the aided institution took grant-in-aid, in excess of what it was entitled to in terms of Rule 14 of the Rules of 1993, by counting the period of services rendered by the petitioner from the date of his initial appointment, the petitioner cannot take the benefit of the same now.

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15G. The writ petition filed by the petitioner is a sheer misuse of judicial process. The petitioner, if had any grievance in respect of his service conditions, he ought to have been vigilant while giving option to come under the purview of the RVRES Rules of 2010. The petitioner with open eye and with full understanding of his service career had sought the benefit under the terms and conditions set out in the RVRES Rules of 2010 and he cannot be now allowed to blow hot and cold together.

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15H. The petitioner is a well qualified person, who was holding the post of Lecturer and it cannot be presumed that he was not aware of the consequences which were to follow by opting the conditions set out in the RVRES Rules of 2010.

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15I. The salary of the petitioner was revised by issuing order dated 21.02.2011 and the petitioner accepted the revision of his pay in senior and selection scales for a considerable period of eight years and the petition filed in August, 2019 is not only sheer misuse of judicial process but the same is also required to be dismissed on the grounds of delay and laches.

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15J. The present writ petition, filed by the petitioner, in spite of the fact of knowing the vires of the RVRES Rules of 2010 being upheld and the consequential order being accepted by the petitioner for a considerable period, hence, deserves to be dismissed with heavy costs.

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We have heard learned counsel for the parties and with their assistance perused the material on record.

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This Court finds that following substantial issues, raised in the writ petition, require adjudication:-

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(i) Whether the grant of CAS benefits by the UGC is in conflict with the Rule 5(iv) of the RVRES Rules of 2010, as being discriminatory and taking away the vested right of an employee.

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(ii) Whether the judgment passed by the Division Bench of this Court in the case of Prem Prakash Purohit (supra) is a judgment passed sub silentio and the said judgment is an exception to the Rule of Precedent and

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as such requires fresh adjudication by this Court in spite of upholding of Rule 5(iv) of the RVRES Rules of 2010 as intra vires .

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(iii) Whether an employee having signed the undertaking and taken the benefit of

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absorption/appointment in new service Rules i.e. the RVRES Rules of 2010, can be permitted to assail certain conditions and can blow hot and cold together by taking advantage of one part of the Rules and challenge another part of the Rules, said to be offending his fundamental rights.

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(iv) Whether an employee, after accepting the benefits, can file a writ petition challenging the vires of the Rules relating to service conditions after inordinate delay and that too after upholding of the validity of the RVRES Rules of 2010 of which benefit is taken by him in the year 2011 itself.

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18. This Court finds that the first grievance raised by the petitioner is in respect of extending the benefit of CAS by the UGC in favour of the petitioner by treating his initial date of appointment on the post of Lecturer w.e.f. 19.01.1993 and grant of senior scale from 19.01.1998 and further benefit of selection scale w.e.f. 19.01.2003 to be in contradiction due to operation of Rule 5(iv) of the RVRES Rules of 2010. This

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Court finds that the CAS has been introduced by the UGC by providing eligibility conditions. The case of the petitioner was dealt with by his erstwhile employer, as per the UGC guidelines and accordingly the benefit was extended to him even while working against a non-sanctioned post.

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19. This Court finds that the State Government while introducing the RVRES Rules of 2010 had clearly provided that the benefits of CAS would be counted from the date one person/employee was appointed against the sanctioned post. The said decision of the State Government in no way can be in conflict with the UGC scheme. The grant of CAS by the State Government requires different basis and as such it cannot be inferred that the Central Legislation, as introduced by the UGC, has been breached by the State Government. This Court finds that the State Government owes liability towards the institutions for providing them grant-in-aid on the sanctioned posts and if against the non-sanctioned post, the private management has employed a particular number of persons, the State Government at no point of time was required to bear the expenses or to provide matching grant.

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The submission of the learned counsel for the petitioner that once the benefit was extended under the erstwhile UGC Scheme and the same could not have been withdrawn or decided detrimental to the rights of the petitioner, this Court

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finds that the employee/petitioner, if has given option to join under the new service Rules, the benefits, if any, which were granted earlier, could not have been carried forward, as has been pleaded.

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20. The submission of the learned counsel for the petitioner that Rule 5(iv) of the RVRES Rules of 2010 is discriminatory and violative of Article 14 of the Constitution of India, as it applies to only those employees, who have joined government service and does not apply to the employees working with their respective erstwhile Non-Government Educational Institutions and as such, there is an unjustifiable dichotomy amongst similarly situated persons, this Court finds that the RVRES Rules of 2010 if were promulgated by the State Government by keeping in mind the overall welfare of the employees working in the Aided Institutions, to bring them at par with other Government employees working in Government Educational Institutions, it cannot be inferred that the State Government has created two classes amongst similarly situated persons.

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This Court further finds that the RVRES Rules of 2010 had not introduced automatic absorption/appointment/ transfer of all the employees who were working in the NonGovernment Educational Institutions. On the contrary, the said Rules were optional and only those employees who had

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given their option to join under the RVRES Rules of 2010, such employees and their service conditions were regulated by the new Rules.

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This Court is afraid to accept the submission of the learned counsel for the petitioner that by introduction of the RVRES Rules of 2010, a hostile discrimination has been meted out against the similarly situated persons. The State Government, within its rights has made a valid classification between the employees, who wanted the benefits to continue with their old institutions and the employees, who wanted to join under new service Rules and as such, the State being a model employer, if decided to confer status and other benefits in favour of such employees, no allegation of discrimination or arbitrariness can be accepted by this Court.

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22. The submission of learned counsel for the petitioner that Rule 5(iv) of the RVRES Rules of 2010, prescribing eligibility for grant of UGC pay scales, is beyond legislative competence of the State Government, this Court finds that such submission is absolutely without any basis and bereft of any reason. This Court finds that the UGC pay-scales, which have been prescribed by the UGC, do provide eligibility conditions and the State Government has not tinkered with such eligibility and while bringing the employees under the coverage of RVRES Rules of 2010, the State Government has

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decided that the services rendered against non-sanctioned post cannot be taken into account, while considering the benefit of CAS.

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This Court finds that the State Government had full competence to enact the RVRES Rules of 2010 and the entire cadre, which was to come within the control of new Rules i.e. the RVRES Rules of 2010, if had conferred rights, the same cannot be alleged to be introduced without having legislative competence.

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The submission of learned counsel for the petitioner that the benefits which were sanctioned under the provisions of erstwhile law, at the relevant time, could not have been arbitrarily denied with retrospective effect, this Court finds that prior to enactment of the RVRES Rules of 2010, the service conditions of employees, working in Non-Government Educational Institutions/Aided Institutions were regulated by separate service Rules and if by the introduction of the RVRES Rules of 2010, the entitlement of employees was to be decided, the same cannot be said to be taking away the benefit from retrospective effect.

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Those employees, who had given option to be appointed under the RVRES Rules of 2010, have been given the benefit in respect of their service conditions. However, there cannot be a valid justification for an employee to ask the State

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Government to take into account the said service by giving full benefits while working on non-sanctioned post.

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24. The submission of learned counsel for the petitioner that the erstwhile Rules of 1993 provided in the explanation appended to the Rule 2(c) that any employee working in Aided Institution was required to be given the benefit of UGC pay scale even if the particular post was not sanctioned and receiving grant-in-aid, this Court finds that the petitioner if had any grievance in respect of not getting grant-in-aid against the post on which he was appointed and if the said post being subsequently sanctioned, the petitioner ought to have raised his grievance at the relevant point of time but after continuing with the previous employer on the nonsanctioned post, he cannot be allowed to raise such grievance, after his absorption in the year 2011 itself. It will be too late to allow such frivolous claim, to be granted by the employer or by the State, at the juncture of appointment of the petitioner in the new Rules.

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The submission of learned counsel for the petitioner that earlier judgment passed by the Division Bench in the case of Prem Prakash Purohit (supra) was not assailed on many grounds, which have been raised in the present petition and the arguments and submissions made in the present petition, since did not have any consideration/discussion or finding by

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the Court, the said judgment cannot be a binding precedent and the earlier judgment is passed sub silentio , this Court finds that the Division Bench of this Court in the case of Prem Prakash Purohit (supra) had considered all the submissions which were raised before the Court and the Court accordingly passed the said judgment.

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The theory of judgment being passed by this Court earlier as passed sub silentio has been noted to be rejected. This Court finds that any litigant, who files the writ petition and challenges the vires of the Act and after considering all the grounds raised and all the submissions raised by the counsel for the parties, if the Court passes a judgment, then filing of subsequent petition by raising allegedly new grounds, cannot result into treating the earlier judgment to be passed sub silentio .

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This Court finds that if the plea of the counsel for the petitioner will be allowed, the same would result into a total uncertainty and chaos in the Court proceedings inasmuch as the finality of judgment will never be achieved on account of challenging the same provisions of law at different forums, at different times, by different litigants and by different counsels. The said endeavour would be an attempt to rack up the issue again and again and as such, in our Indian system of dispensation of justice, in common law, the principle of

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‘Rule of Precedent’ will take a back seat and such kind of adventurism and over enthusiasm, if allowed to be used by the litigants and by the counsels appearing on their behalf, the same would result into multiplicity of litigation on the same subject which has attained finality in the Constitutional Courts.

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This Court, in order to consider the issue as whether subsilentio is an exception to Article 141 of the Constitution of India, deems it proper to refer a case decided by the Apex Court in the case of State of Gujarat Vs. R.A. Mehta reported in (2013) 3 SCC 1 , wherein the Apex Court has held at para 61 as follows:-.

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“61. There can be no dispute with respect to the settled legal proposition that a judgment of this Court is binding, particularly when the same is that of a coordinate Bench or of a larger Bench. It is also correct to state that even if a particular issue has not been agitated earlier or a particular argument was advanced but was not considered the said judgment does not lose its binding effect, provided that the point with reference to which an argument is subsequently advanced has actually been decided. The decision therefore, would not lose its authority “merely because it was badly argued, inadequately considered or fallaciously reasoned”. The case must be considered taking note of the ratio decidendi of the same i.e. the general reasons or the general grounds upon which the decision of the court is based, or on the test or abstract from the specific peculiarities of the particular case which finally gives rise to the decision.”

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This Court finds that in respect of ‘Law of Precedent’, the ratios of Larger Benches and judgments of Superior Courts, if

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were to be merely rested upon the quicksands of ingenuity of the counsel to raise fresh or novel argument, which had not been earlier raised or considered and if such orders will be dislodged on these basis then the finality of binding precedent would become a mirage and impossible.

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The submission of learned counsel for the petitioner that undertaking given by the petitioner under Rule 5(xi) of the RVRES Rules of 2010 cannot be estoppel for assailing the validity of Rule 5(iv) of the RVRES Rules of 2010, as the same would be violative of Articles 14 and 19(1)(g) of the Constitution of India, this Court finds that the petitioner having given an undertaking under Rule 5(xi) of the RVRES Rules of 2010 and taken all the benefits, would be bound by the undertaking given by him and there cannot be any violation of the Articles 14 and 19(1)(g) of the Constitution of India, as alleged by the petitioner. This Court finds that a person who voluntarily opts to join new service and gives an undertaking and takes benefits of the beneficial Legislation, cannot be permitted to turn around and say that the undertaking given by him will not be binding on him.

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The submission of learned counsel for the petitioner that since impugned order was passed on 21.02.2011 and there has been no delay in filing the petition as denial of benefit of CAS and Senior Scale constitute a continuous cause of action,

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this Court is afraid to accept such baseless submission made by counsel for the petitioner.

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This Court finds that the order dated 21.02.2011 was passed determining some rights of the petitioner and he continued to be governed by the new RVRES Rules of 2010 for almost eight years and files the writ petition on 26.08.2019. The cause of action, if any, had accrued to the petitioner at the time of passing of order or immediately after his appointment under the new RVRES Rules of 2010. The petitioner woke up from slumber after eight years and the present petition wholly suffers from delay and laches and as such the objection raised by the respondents is perfectly valid. This Court is constrained to observe that the judgment by the Division Bench in the case of Prem Prakash Purohit (supra) was passed on 25.01.2018 and the said judgment attained finality and the same was not set aside by the Apex Court and as such, the petitioner or for that matter any other employee, who was earlier working in a Non-Government Educational Institution and who later came to be appointed under the RVRES Rules of 2010, cannot be permitted to plead before this Court that cause of action to approach the Court will arise as and when any employee will feel aggrieved against the provisions introduced way back in the year 2010.

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This Court finds substance in the submission raised by the counsel for the respondents that the State Government since had sanctioned the post in terms of Rule 17 of the Rules of 1993 and started paying proportionately in terms of Rules 13 and 14 of the Rules of 1993, the service conditions of the petitioner prior to 1998, was not the concern of the State Government.

¶175

Counsel for the petitioner has placed reliance on the judgment passed by the Apex Court in the case of Municipal Corporation of Delhi Vs. Gurnam Kaur (supra). This Court finds that the Apex Court in the said case was considering the directions issued by the Delhi High Court in a writ petition filed under Article 226 of the Constitution of India. The Apex Court noted the fact of earlier writ petition filed in the Apex Court under Article 32 of the Constitution of India and there on the basis of consent of the parties, the Apex Court without adjudicating upon the rights of the parties, made the order with the consent of the parties without deciding any issue on merits.

¶176

The Delhi High Court followed the order passed by the Apex Court in the case of Jamna Das Vs. Delhi Administration (Writ Petition Nos.981-82 of 1984) decided by the Apex Court and in such background, the Apex Court held that since the earlier judgment by the Apex Court

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was passed on the basis of consent and the said judgment was to be treated as per incuriam , as the Jamna Das ’s case was delivered without argument, without reference to the relevance provisions of Act and as such, the judgment passed by the Delhi High Court was not upheld, as the same was passed on a wrong principle and it was passed in sub silentio .

¶181

This Court finds that in the said judgment in para-11, the Apex Court referred to the concept of sub silentio, by referring to the book of Salmond on Jurisprudence. This Court finds that the said judgment is of little assistance to the counsel for the petitioner.

¶182

Learned counsel for the petitioner has placed reliance on a judgment passed by the Apex Court in the case of State of

¶183

UP & Anr. Vs. Synthetics & Chemicals Ltd. & Anr. (supra), this Court finds that the Apex Court in the said case considered Article 141 of the Constitution of India as well as doctrines of per incuriam and sub silentio and found that these two doctrines operate as exception to the rule of precedent. The Apex Court further found that any decision which is not expressed and not founded on reasons nor proceeding on consideration of the issue, cannot be deemed as ‘law declared’.

¶184

This Court finds that the said judgment again reiterated the exception to the rule of precedent and found that a

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decision is passed sub silentio in technical sense, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Apex Court further found that the case of Municipal Corporation of Delhi Vs. Gurnam Kaur (supra) also dealt with the similar issue. The judgment relied upon by the counsel for the petitioner is of no assistance to the counsel for the petitioner.

¶189

Learned counsel for the petitioner has placed reliance on a judgment passed by the Apex Court in the case of A-One Granite Vs. State UP & Ors. (supra), this Court finds that the Apex Court in the said case has found that if question regarding applicability of rules is even not referred to much less considered by the Court in the earlier appeals, then it cannot be said that the point is concluded by the same and it remains no longer res-integra . This Court finds that the Apex Court in the said judgment considered the earlier judgment passed by it in the case of Prem Nath Sharma Vs. State of UP reported in (1997) 4 SCC 552 and found that in the earlier round of litigation, the applicability of Rule 72 of the UP Minor Mineral (Concession) Rules, 1963 was not canvassed before the Apex Court and its applicability was also not placed before the Apex Court and as such, the Apex Court decided the case afresh. The judgment relied upon by counsel for the petitioner has no relevance in the facts of the present case.

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Learned counsel for the petitioner has placed reliance on a judgment dated 01.02.2018 passed by the Coordinate Bench of this Court in D.B. Civil Writ Petition No.7568/2012 (Rajasthan Samayojit Shiksha Karmi Welfare Society Vs. State of Rajasthan & Anr.) , this Court finds that the D.B. Review Petition (Writ) No.25/2019 [The State of Rajasthan & Anr. Vs. Ramgopal Verma & Ors.] and other connected review petitions were filed against the order dated 01.02.2018 and the Division Bench at Principal Seat, Jodhpur passed an order dated 20.09.2021 and allowed the review petitions. The writ petitions were restored to their original numbers and the respondents-writ petitioners were permitted to amend their writ petitions to challenge the vires of Rule 5(ix) of the RVRES Rules of 2010 as substituted by the Rajasthan Voluntary Rural Education Service (Second Amendment) Rules, 2012.

¶194

This Court is also informed that the order passed in review petitions dated 20.09.2021 has been challenged before the Apex Court by filing SLP and vide order dated 14.02.2022, the review order dated 20.09.2021 has been stayed by the Apex Court.

¶195

This Court finds that the judgment relied upon by the counsel for the petitioner and pendency of subsequent

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litigation before the Apex Court, will have no bearing in the present matter.

¶200